The development of the common european asylum system from minimal to common standards
| Author | Petru Emanuel Zlatescu |
| Pages | 141-150 |
The development of the common european asylum system... 141
THE DEVELOPMENT OF THE COMMON EUROPEAN
ASYLUM SYSTEM FROM MINIMAL TO COMMON
STANDARDS
Petru Emanuel ZLTESCU*
ABSTRACT
As mentioned in the recitals of the different legal acts forming the Common European Asylum
System (CEAS), a common policy on asylum, including a Common European Asylum System, is a
constituent part of the European Union’s objective of progressively establishing an area of freedom,
security and justice open to those who, forced by circumstances, legitimately seek protection in the
Union. Such a policy should be governed by the principle of solidarity and fair sharing of
responsibility, including its financial implications between the Member States. At its special meeting
in Tampere on the 15th and the 16th of October 1999, the European Council agreed to work towards
establishing a Common European Asylum System, based on the full and inclusive application of the
1951 Geneva Convention relating to the Status of Refugees.
The legal protection of refugees at EU level is mainly regulated in secondary
law acts1, such as the EURO-DAC-Regulation2, the Dublin III Regulation3, and the
Directives 2013/32/EU (Asylum procedure Directive), 2013/33/EU (Reception
Directive) and 2011/95/EU (Qualification Directive). The mentioned legal acts
form the Common European Asylum System (CEAS)4. The CEAS has already
reached its second development phase. The recast version of the CEAS legal acts
aims to expand the previous minimal protection level to common, uniform
standards for the material protection of refugees and asylum seekers5. This aim is
very well emphasized in the recitals of the different acts. For example, the recital of
the Reception Directive explicitely stipulates the expansion of the previous minimal
standards and the development of higher protection level, according to the
Stockholm-Programme6. The increase of the protection standard in the second
* PhD Candidate, Member of the European Law Institute (ELI).
1 Lehnert, Movements 1/2015, 2.
2 Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013.
3REGULATION (EU) No 604/2013 OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL of 26 June 2013.
4 Cherubini, Asylum Law in the EU, 165.
5 Velutti, Reforming the CEAS, 3.
6 Recital (5) Dir. 2013/33/EU; Peers et al., EU Immigration, 498.
Law Review vol. III, Special issue 2017, pp. 141-150
142 PETRU EMANUEL ZLĂTESCU
phase of the CEAS is also highlighted through terminological changes in the text of
the various Directives7.
The Reception Directive
Important for the material protection of refugees is first of all the Reception
Directive. This Directive does not aim the protection of persons whom has already
been granted the refugee status or the subsidiary protection status, but the protection
of persons who only applied for a form of international protection in one of the
member states and their dignity8. The primary objective of Directive 2013/33/EU is
to ensure equivalent treatment in all member states for persons applying for
international protection9. The directive’s considerations emphasize that its application
should always be consistent with the instruments for the protection of human rights,
such as the UN Convention on the Rights of Children, the Charter of Fundamental
Rights of the European Union and the European Convention on Human Rights
(ECHR)10. In addition, the member states must comply with their other obligations
under international law when applying the Directive11.
The scope of the Directive covers all types of procedures related to the
application for international protection and all phases of these procedures12. The
Directive aims to set a uniform standard for applicants and contains standards for
the substantive and procedural protection of these persons13. Especially, the provisions
of the Directive are aimed at ensuring the safeguarding of the human dignity of the
asylum seeker for the duration of the asylum procedure14. The most important
contents of the Directive are the regulation of the accommodation of the asylum
seekers during the procedure and the effective access to the necessary procedural
guarantees15. While providing these benefits, the member states should take into
account the concerns of individuals with special needs16.
The recast Directive has a broader scope of application than the previous
Directive: While the Directive 2003/9/EC only protected applicants for the recognition
7 The first version referred to the acts as Directives for minimum standards, while the recast
version refer to the acts as Directives for common standards.
8 Opinions of the Advocate General Eleanor Sharpston from 15.05.2012, ECJ C-179/11, Cimade
and GISTI, ECLI:EU:C:2012:298, N. 5; Fröhlich, Asylrecht im Rahmen des Unionsrechts, 217.
9 Recital (8) Dir. 2013/33/EU; Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum
Law, Kommentar, Art. 1 Dir. 2013/33/EU, N. 7.
10 Recital (9) Dir. 2013/33/EU; ECJ, C-179/11, Cimade and GISTI, ECLI:EU:C:2012:594, N.42;
Peers et al., EU Immigration, 502.
11 Recital (10) Dir. 2013/33/EU; FRA, Handbook (Fn. 40), 77.
12 Recital (8) Dir. 2013/33/EU; Peers et al., EU Immigration, 502.
13 FRA, Handbook (Fn. 40), 183.
14 Recital (50) Directive 2013/33/EU; Fröhlich, Asylrecht im Rahmen des Unionsrechts, 215.
15 Recital (15) Directive 2013/33/EU; Peers et al., EU Immigration, 501.
16 ECJ, C-79/13, Saciri, ECLI:EU:C:2014:103, N. 46.
The development of the common european asylum system... 143
of their refugee status, the Directive 2013/33/EU also covers the protection of
applicants for subsidiary protection17.
The Directive contains a detailed regulation of the detention conditions of
applicants18. Even if these rights do not directly represent material guarantees, they
are of particular importance for the protection of the applicant's human dignity on
the one hand and for the realization of the effet utile of the Directive19. The recast
version of the Reception Directive also brought a number of changes, aimed at
bringing the detention regulation into line with the human rights obligations of the
public international law. Detention for the purpose of migration control should
only be seen as a last resort measure, as it may run counter to the idea of
integration and respect for human dignity20. In this regard it is worth mentioning,
that the detention of an asylum seeker only on the ground of his applicant status is
strictly forbidden21. This corresponds to Art. 31 of the Geneva Convention,
according to which a person may not be detained solely for requesting
international protection22. Furthermore, detention, as a serious restriction on the
freedom of movement, may only be carried out by a written and reasoned decision
of a judicial or administrative authority, in compliance with the principles of
necessity and proportionality23. The detention of the asylum seeker has to be
limited to the shortest possible duration24. Likewise, delays in the asylum
procedure, for which the applicant does not have to defend, must not lead to an
extension of his detention.25 Regarding the conditions of detention, the Directive
enshrines the principle, that detention should only take place in special
institutions26. Exceptions are allowed, however, if the receiving member state does
not have such facilities27. Detention in such cases must take place separately from
criminal offenders and, where possible, also from third-country nationals who are
not involved in an asylum procedure28. For applicants with special protection
needs, the Directive provides additional protective measures for the duration of
17 Lehnert, Movements 1/2015, 5; Cherubini, Asylum Law in the EU, 235.
19 Peers et al., EU Immigration, 503.
20 Velluti, Reforming the CEAS, 65.
21 ECJ, C-534/11, Arslan, ECLI:EU:C:2013:343, N. 54; Lehnert, Movements 1/2015, 8; Mangiaracina,
European Journal for Migration and Law 2016, 182.
22 Art. 8 (1) Directive 2013/33/EU; Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and
Asylum Law, Kommentar, Art. 8 Directive 2013/33/EU, N. 8.
23 Art. 9 (2) Directive 2013/33/EU; Peers et al., EU Immigration, 520; Peek/Tsourdi, in:
Hailbronner/Thym, EU Immigration and Asylum Law, Kommentar, Art. 9 Directive 2013/33/EU, N. 7.
24 Art. 9 (1) Directive 2013/33/EU; Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and
25 Art. 9 (1), Directive 2013/33/EU; Peers et al., EU Immigration, 521.
26 Mangiaracina, EJML 2016, 181.
27 Velluti, Reforming the CEAS, 67.
28 Art. 10 (1) Directive 2013/33/EU; Peers et al., EU Immigration, 523.
144 PETRU EMANUEL ZLĂTESCU
the detention29. In addition to a periodic review of detention, the necessary support
should also be provided30. The particular concerns of the detainees must be taken
into account31. Many ECHR guarantees are reflected in the Directive and the
general principle of respect for the human dignity is thus confirmed. Similar to
how Article 6 ECHR establishes the right to a fair trial, the Directive requires the
possibility of having the legality of the detention reviewed by the courts32. The
Directive also provides the duty of the ordering authority to give the reasons of its
decision33. The applicant must therefore be informed of the reasons for his detention
and of domestic remedies for contesting the detention order34. Furthermore, the
asylum seeker is to be guaranteed free legal advice and representation, if he is not
capable to pay for these himself35. Although the Directive has comprehensively
regulated detention, it is also possible to observe some deficiencies from the point
of view of the applicant's legal protection36. The grounds for detention are relatively
open and the member state is given considerable discretion. Thus, detention can be
used extensively, including for purposes of identification or preserving evidence,
which runs counter to UNHCR recommendations37. Moreover, the concrete
determination of the grounds for detention remains the responsibility of the
member states. It is also allowed to order detention on grounds of public order or
national security38. Member states can express the reasons for detention in a
language that can be presumed to be understood by the applicant39. This standard
is less favorable compared to the provisions of Article 5 (2) of the ECHR, which
only permit the use of a language in detention which the person concerned
actually understands40.
In addition to the regime of detention, the Directive contains a number of
substantive rights designed to enable the applicant to lead a decent life for the
duration of the proceedings, as well as to ensure his health and livelihood41. These
29 Hailbronner, EJML 2007, 170.
30 Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, Kommentar, Art. 11
Dir. 2013/33/EU, N. 8.
31 Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, Kommentar, Art. 11
Dir. 2013/33/EU, N. 8.
32 Art. 9 (3) Dir. 2013/33/EU; Velluti, Reforming the CEAS, 66.
33 Art. 9 (4) Dir. 2013/33/EU; Peukert, in: Frowein/Peukert, EMRK Kommentar, Art. 6 ECHR, N. 182.
34 Velluti, Reforming the CEAS, 68.
35 Art. 9 (4) Dir. 2013/33/EU.
36 Peers et al., EU Immigration, 521.
37 Art. 8 Dir. 2013/33/EU; Velluti, Reforming the CEAS, 67; UNHCR, Haft-Richtlinien über
anwendbare Kriterien und Standards betreffend die Haft von Asylsuchenden und Alternativen zur
Haft, 2012, Dir. 4.1, 15 N. 24, .
38 Art. 8 (3) lit. f Dir. 2013/33/EU.
39 Art. 9 (4) Dir. 2013/33/EU.
. 40 ECtHR, C. 51564/99, (Conka/Belgien), N. 50.
41 ECJ, C-79/13, Saciri, ECLI:EU:C:2014:103, N. 40; Fröhlich, Asylrecht im Rahmen des Unionsrechts, 217.
The development of the common european asylum system... 145
advantages are available to the applicant from the moment of submission of his
asylum application and not only after the granting of responsibility by the member
state42. In this sense, the Reception Directive concretizes the fundamental principles
of the Charter of Fundamental Rights, in particular the protection of human
dignity (Article 1) and the right to asylum (Article 18)43.
In order to be able to request the substantive entitlements granted by the
Direcitve, the applicant must be informed about these rights44. Thus, the Directive
grants a right to information45. This means that the applicant must be informed
within a reasonable period of time of a maximum of fifteen days from the application
about the rights and obligations from the Directive46. In addition, applicants must be
informed about organizations providing legal advice or other types of assistance47.
Such information shall in principle be provided written and in a language which the
applicant understands or may reasonably be expected to understand48.
The applicant has the right to obtain an official certificate of his legal status or
residence permit within three days of the application being made49. Any restrictions
on his freedom of movement in the area of the member state are to be expressed in
the document mentioned above50. However, the applicant is not entitled to
unrestricted freedom of movement within the state territory51. Member states may
limit this freedom to an assigned area as long as the right to privacy is respected
and as long as the applicant is able to claim all his rights52. In addition, member
states is given the opportunity to make the granting of material benefits conditional
upon compliance with the assigned residence area53.
The Directive also regulates access to the education system and the labor
market. Protected are, on the one hand, minor applicants and, on the other hand,
42 Opinion of the Advocate General Eleanor Sharpston 15.05.2012, ECJ, C-179/11, Cimade and
GISTI, ECLI:EU:C:2012:298, N. 40-42; ECJ, C-179/11, Cimade and GISTI, ECLI:EU:C:2012:594, N. 39.
43 Peers et al., EU Immigration, 500.
44 Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, Kommentar, Art. 5
Dir. 2013/33/EU, N. 1.
45 Art. 5 Dir. 2013/33/EU; Peers et al., EU Immigration, 512.
46 Pelzer/Pichl, Asylmagazin 10/2015, 332.
47 Art. 5 (1) Dir. 2013/33/EU; Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum
Law, Kommentar, Art. 5 Dir. 2013/33/EU, N. 2.
48 Art. 5 (2) Dir. 2013/33/EU; Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum
Law, Kommentar, Art. 5 Dir. 2013/33/EU, N. 11.
49 Opinion of the Advocate General Eleanor Sharpston, 15.05.2012, ECJ, C-179/11, Cimade and
GISTI, ECLI:EU:C:2012:298, N. 46; Art. 6 (1) Dir. 2013/33/EU; Peers et al., EU Immigration, 512.
50 Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, Kommentar, Art. 6
Dir. 2013/33/EU, N. 5.
51 Art. 7 (1) Dir. 2013/33/EU; Peers et al., EU Immigration, 514 .
52 Opinion of the Advocate General Melchior Wathelet, 31.01.2013, ECJ, C-534/11, Arslan,
ECLI:EU:C:2013:52, N. 16; Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law,
Kommentar, Art. 7 Dir. 2013/33/EU, N. 11.
53 Art. 7 (3) Dir. 2013/33/EU; Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum
Law, Kommentar, Art. 7 Dir. 2013/33/EU, N. 15.
146 PETRU EMANUEL ZLĂTESCU
minor children of applicants54. Until they are affected by an expulsion measure, the
access of minors to the national education system is guaranteed55. Access should be
similar to that of member state's own nationals and may be restricted by member
states to public schools. The approval must be made at the latest three months after
the application56.
Some improvement in guaranteed protection is reflected in labor market
regulations. According to Directive 2013/33/EU, access to the labor market should
be granted no later than nine months after the application, compared to twelve
months, as determined by the previous regime57. Closer regulation of access remains
in the competence of the member state58. They may also give priority to EU citizens,
EEA nationals and legally-established third-country nationals59. However, the
recast Directive abolished the possibility of member states to set a certain time limit
from the filing of an application within which the applicant is denied access to the
labor market60.
A central aspect of substantive protection is also the material benefits that the
applicant can claim during the procedure61. These benefits may take the form of
cash or in kind62. Their height is determined by the respective member state. The
Directive only specifies the principles of this calculation63. It is necessary to ensure
a decent standard of living that enables a decent lifestyle64. Member states must
take into account the physical and mental health of applicants and at least ensure
emergency care and the essential treatment of disease65.
The Qualification Directive
Of central importance in the area of substantive refugee law of the European
Union is the Directive 2011/95/EU (Qualification Directive)66. This is a recast of the
Directive 2004/83/EC. It has two main objectives: On the one hand, the Directive
54 Art. 14 (1) Dir. 2013/33/EU; Peers et al., EU Immigration, 530.
55 Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, Kommentar, Art. 14
Dir. 2013/33/EU, N. 3; Peers et al., EU Immigration, 530.
56 Art. 14 (2) Dir. 2013/33/EU.
57 Fröhlich, Asylrecht im Rahmen des Unionsrechts, 221.
58 Art. 15 (2) Dir. 2013/33/EU.
59 Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, Kommentar, Art. 15
Dir. 2013/33/EU, N.. 15.
60 Art. 11 (1) Dir. 2003/9/EC; Weber, EJML 2016, 53.
61 Fröhlich, Asylrecht im Rahmen des Unionsrechts, 217.
62 Opinion of the Advocate General Eleanor Sharpston, 15.05.2012, ECJ, C-179/11, Cimade and
GISTI, ECLI:EU:C:2012:298, N. 7; Peers et al., EU Immigration, 506.
63 Fröhlich, Asylrecht im Rahmen des Unionsrechts, 218.
64 Tsourdi, Immigration, Asylum and Nationality Law 2015, 20.
65 Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, Kommentar, Art. 17
Dir. 2013/33/EU, N. 11.
66 Lafrai, EU-Qualifikationsrichtlinie, 1.
The development of the common european asylum system... 147
should set criteria by means of which the member states determine which persons
should be guaranteed international protection67. On the other hand, the Directive
aims to standardize the legal protection after the granting of the international
protection status68. Thus, the Directive aims to harmonize national legislation on the
granting and content of refugee status and subsidiary protection status69.
This should also contribute to the containment of secondary migration70. The
guaranteed international protection includes refugee status and subsidiary protection
status71. Regarding the refugee status, the Directive builds on the refugee concept
of the Geneva Convention72. Since both the Directive and Article 78 TFEU refer to
the Geneva Convention several times, the ECJ was determined to interpret the
Directive in its light73. For this purpose, consultations with the UNHCR should
facilitate the concretisation of the refugee status74. It is noteworthy, however, that
the Directive makes no explicit reference to the ECHR, although its significance has
been confirmed by the Commission's report when adopting the Directive75. However,
the personal scope of the Directive is not limited to refugees76. Thus, the Directive
anchors the institute of Subsidiary Protection to supplement the refugee status77.
It was developed by the European Court of Human Rights (ECtHR) on the basis of
Article 3 of the ECHR78 and covers persons who do not fulfill the conditions for the
recognition of refugee status but whose return to the country of origin entails the
real danger of serious harm79.
In addition, these persons must not be able to claim the protection of the country
of origin80. The requirement of justified fear of political persecution is replaced in
this case by the actual danger of serious harm81. This includes the imposition or
execution of the death penalty, torture, inhumane or degrading treatment, or a serious
individual threat to life or integrity as a result of arbitrary force in the context of an
armed conflict82. Member states have the option to provide more favorable conditions
67 Dörig, in: Hailbronner/Thym, EU Immigration and Asylum Law, Kommentar, Art. 1
Dir. 2011/95/EU, N. 1.
68 Lehnert, Movements 1/2015, 3; Rogowicz, Asyl- und Flüchtlingsrecht, 249.
69 Peers, EJML 2012, 204 f.
70 Hummer, Austrian Law Journal 2016, Band 1, 16.
71 FRA, Handbook (Fn. 40), 49.
72 ECJ, C31/09, Bolbol, ECLI:EU:C:2010:351, N. 37; Roos/Zaun, EJML 2014, 53.
73 ECJ, C-175/08, C-176/08, C-178/08 and C-179/08, Abdulla, ECLI:EU:C:2010:105, N. 53;
Cherubini, Asylum Law in the EU, 184.
74 Recital (22) Dir. 2011/95/EU.
75 Cherubini, Asylum Law in the EU, 184 f.
76 Marx, Handbuch zum Flüchtlingsschutz, 494 N. 1.
77 Rogowicz, Asyl- und Flüchtlingsrecht, 253; Lehnert, Movements 1/2015, 3.
78 Marx, Handbuch zum Flüchtlingsschutz, 495 N. 3; Cherubini, Asylum Law in the EU, 185.
79 Hummer, Austrian Law Journal 2016, Band 1, 9.
80 Art. 2 lit. f Dir. 2011/95/EU; Marx, Handbuch zum Flüchtlingsschutz, 498 N. 5.
81 Art. 2 lit. f Dir. 2011/95/EU; Marx, Handbuch zum Flüchtlingsschutz, 498 N. 5.
82 Art. 15 Dir. 2011/95/EU; Fröhlich, Asylrecht im Rahmen des Unionsrechts, 229.
148 PETRU EMANUEL ZLĂTESCU
for the recognition of international protection status83. The new version of the
Qualification Directive has led to a better position for beneficiaries of subsidiary
protection. Thus, persons who have been granted subsidiary protection status
should enjoy the same benefits and rights under the same conditions as recognized
refugees84. However, this principle is not absolute. The access of beneficiaries to the
labor market was also expanded. Every work should be allowed without
restrictions85.
Also, health services should no longer be limited to core services. Furthermore,
the recast of the Qualification Directive removes the possibility of member states to
deny benefits to individuals who have self-inflicted their protection status to meet
the requirements of refugee status86.
As already mentioned, the Reception Directive regulates the legal protection of
asylum seekers for the duration of the asylum procedure.87 By contrast, the
Qualification Directive regulates material protection after recognition of
international protection status88. In addition to the already outlined refoulement
prohibition, the guaranteed protection also includes information rights, provisions
regarding residence and a range of social and economic rights89. These should be
ensured taking into account the special needs of the claimant and the typical
integration difficulties90. In particular, the member states should comply with the
interests of the child as well as take into account specific concerns of vulnerable
persons91. Directive 2011/95/EU extends the concept of vulnerable persons. In
addition to (unaccompanied) minors, the disabled, the elderly, pregnant women
and single parents, the new version of the Directive puts two additional categories
under special protection: victims of human trafficking and persons with mental
disorders92. It should also be mentioned that the Directive excludes EU citizens
from international protection93. This is based on the premise that member states of
the Union represent safe states in which the presupposed persecution cannot take
place94. However, citizens of other member state may rely on the protection of the
Geneva Convention or of the ECHR, even if they are not covered by the personal
scope of protection of the Directive95.
83 Peers, EJML 2012, 208.
84 Recital (39) Dir. 2011/95/EU; Lehnert, Movements 1/2015, 5.
85 Battjes, in: Hailbronner/Thym, EU Immigration and Asylum Law, Kommentar, Art. 26 Dir.
2011/95/EU, N. 1.
86 Peers, EJML 2012, 209; Art. 20 (5) Dir. 2004/83/EC.
87 Opinion of the Advocate General Eleanor Sharpston, 15.05.2012, ECJ, C-179/11, Cimade and
GISTI, ECLI:EU:C:2012:298, N. 37.
88 Fröhlich, Asylrecht im Rahmen des Unionsrechts, 229.
89 FRA, Handbook (Fn. 40), 219 f.
90 Recital (41) Dir. 2011/95/EU.
91 Velluti, Reforming the CEAS, 53; Marx, Handbuch zum Flüchtlingsschutz, 663 N. 1, 664 N. 5.
92 Art. 20 (3) Dir. 2011/95/EU; Peers, EJML 2012, 215.
93 Art. 2 lit. d and f Dir. 2011/95/EU; Epiney et al., Anerkennung als Flüchtling, 28; Peers et al.,
EU Immigration, 80.
94 Lehnert, Movements 1/2015, 5.
95 Cherubini, Asylum Law in the EU, 185.
The development of the common european asylum system... 149
Conclusion
Although the legal status of asylum seekers and refugees is mostly immediately
determined by the implementation measures of the member states, one cannot deny
the existence of a substantive protection under EU law. As outlined above, the Union
succeeded in further developing the existing minimum standards into common,
uniform standards, thus making an important contribution to safeguarding the
human dignity of the persons concerned. Particularly noteworthy in this context are
the easier access to the education system and the labor market and the extension of
protection for persons with special needs. Progress can also be observed in
procedural terms.
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